Intruder Gets Shot—Sues Homeowner

We’ve all heard the horror stories and read the headlines about criminals suing for injuries the received in they commission of their crime. But, like most, we say to ourselves “that won’t happen to me.” Well, it can and it does happen.

Case in point, as reported January 23, 2016 in the San Mateo Daily Journal:

In Foster City, California, on March 25, 2013, a drunken man stumbled into the home of Joseph Balistreri’s elderly parents at 4:30 in the morning. Joseph was visiting at the time and grabbed a gun and shot the intruder.

The District Attorney’s Office chose not to file charges against Balistreri or the intruder, Patrick O’Neil who had mistaken the Balistreri residence for his friend’s home a few doors down. A few months later, O’Neil filed a civil lawsuit against Balistreri and his parents, who had to hire attorneys to defend against the suit.

After years of costly civil litigation, a San Mateo County judge tentatively ruled Balistreri was justified when he shot an intoxicated O’Neil who accidentally entered the wrong home.
San Mateo County Superior Court Judge Gerald Buchwald issued the tentative ruling January 19, 2016, that Joseph Balistreri, a 45-year-old Brentwood resident, reacted appropriately in 2013 when he shot then 24-year-old Patrick O’Neil.

The unexpected events undoubtedly changed the lives of both men.

“It’s one of those situations where it’s a tragic consequence for both sides. You have what was happening to this family and Mr. O’Neil is trying to get into the house, they perceive him as being a burglar, there was mass hysteria in the house, they’re scared to death. It was about 4:30 in the morning. Then there’s the tragic consequence that this person who was severely intoxicated, put in motion the whole domino effect. He created the situation whereby he ends up getting shot,” said Katherine Moore, an attorney representing Balistreri.
According to court documents, Balistreri awoke in the early morning hours to a strange noise and found an unknown man trying to enter the front door. Having just celebrated his wife’s 40th birthday, Balistreri happened to be saying at the Foster City residence along with his then 12-year-old son and two parents who were in their 70s and 80s. Scared for the welfare of his family, Balistreri grabbed his father’s gun.

The wife dialed 911 as Balistreri loaded the weapon and told the rest of the family to hide in the bedroom. Balistreri and his father, armed with a butcher knife, then heard the intruder jump a side gate and come around the house. Leaving the lights off, the two men watched as O’Neil came through an unlocked garage door into the kitchen.

O’Neil, who weighed about 210 pounds and stood at 6 feet 4 inches tall, was shot three times just moments after entering the home.
Unbeknownst at the time, police silently arrived just moments before the shooting.

“I never want to go through anything like that again, that’s for sure. It was an extremely traumatic experience. I’ve never felt fear like that before. I don’t dream of doing this to someone, it’s not what I’m about. I’m a husband and a father and a son and I have a responsibility to protect my family. So I did what I had to do given the circumstances,” Balistreri said, adding he’s relieved the case is over.

Robert Cartwright, an attorney representing O’Neil, said his client is lucky to be alive, has incurred more than $500,000 in medical bills and was disappointed by Buchwald’s decision.
“The [judge’s] opinion is tantamount to saying that if someone enters your home, regardless of the circumstances, if they’re uninvited, you can shoot them,” Cartwright said.
Cartwright noted several doors to the home were unlocked and that O’Neil was so intoxicated he thought he’d entered his friend’s home.
While the events inside the Foster City residence evolved quickly, the circumstances leading up to the encounter began hours earlier. O’Neil, who wasn’t very experienced with alcohol, had been out drinking with friends, Cartwright said. The then Daly City resident ended up passed out in his friend’s vehicle. The friend, a 19-year-old who was the designated driver and couldn’t physically move O’Neil, parked the car in front of his house and told O’Neil to come in when he was ready, Cartwright said.

Despite having been to his friend’s house on multiple occasions, O’Neil was so intoxicated that he somehow ended up at the Balistreris’ house three doors down.

Buchwald determined the friend was 25 percent at fault and O’Neil was responsible for the remainder of the incident. O’Neil had initially sued the Balistreri parents for negligence, claiming they failed to prevent his accidental shooting. They were ultimately dismissed as parties and instead the younger Balistreri was named as a defendant.

“I’m not a vigilante walking the streets looking for this trouble. … He came after me, to sue me,” Balistreri said, adding he’s incurred significant legal bills. “It’s unfortunate for both parties I agree. But the sadder thing to all this, is our judicial system allows this to happen. This guy breaks into a house, I take action to protect my family, then he has the right to take me to court and sue me for something he caused.”

Ultimately, the parties agreed the case should focus on liability and avoided a jury by having the judge issue a ruling.

Balistreri said he doesn’t sleep well most nights and often spends hours thinking about the incident.

O’Neil, while primarily healed after being shot in the arm, shoulder and upper body, still has some lingering nerve and muscle damage, Cartwright said.
“Mistakes like this can happen. And I think the idea that you can just shoot anybody, and not put any responsibility on someone to verify that a person is truly a threat, I think it puts us in a dangerous society and a dangerous world,” Cartwright said.

Balistreri said he was in fear for his family and has had to pay.

“It just eats away at me,” Balistreri said. “And now I have this huge debt. To protect my family, I have a huge debt now.”

Fortunately for Members of Texas and U.S. Law Shield, such financial devastation is avoided because all attorneys’ fees for the defense of a civil suit in these situations is covered 100%.
Just another benefit your membership provides.

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